NOTTINGHAM ZONING BOARD OF ADJUSTMENT
NOVEMBER 27, 2007
PUBLIC SESSION
NOT FINAL UNTIL APPROVED BY THE BOARD
PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Jim Crowell, Alternate Mr. Jim Howard
Mr. John Morin
Mr. Mike Russo
Mr. Kevin Bassett, Alternate
OTHERS PRESENT:
Atty. Christopher Boldt, DT&C
Mr. Roscoe Blaisdell, Surveyor
Mr. Vern Dingman, Surveyor
Mr. Kelby Longueil
Mr. Steve White
Ms. Grace LaPointe
Mr. Skip Seaverns
Ms. Mary Bonser
Chair Leib called the meeting to order at 7:03 PM. He explained to those present that the Zoning Board is a five (5) member board and a vote of three (3) is required for a motion to pass. He introduced the members, noting that two (2) regular members were absent this evening and that Alternate Members Crowell and Bassett would be sitting in for Members Howard and Jordan, respectively. He also informed those present that Ms. Chauvey is the recording secretary and, as such, would be recording the meeting to assist with transcription of the minutes.
CASE 07-08 Application from Paul and Leslie Longueil for an Area Variance to Article VI Section A1 to allow access to three proposed building sites on Cooper Hill Road, which cannot be accessed from the frontage on Cooper Hill Road due to wetlands location. Two of the proposed accesses are off of North River Lake Road, a private road, with one being proposed in Nottingham and the other in Northwood. The third proposed access is through a shared driveway in Northwood. The lot in question is located on Cooper Hill Road, identified as Tax Map 16 Lot 15A, and owned by Paul and Leslie Longueil.
Present for this hearing: Attorney Christopher Boldt, Mr. Roscoe Blaisdell, Mr. Kelby Longueil
Attorney Boldt spoke on behalf of the Longueils. In response to the Board’s desire to see the surrounding Northwood property, Mr. Blaisdell submitted copies of recorded plat #D29851. This plat was created by William Wormell, is entitled Lot Line Adjustment & Lot Consolidation Plan Tax Map 232-34 Tax map 233-7 Tax Map 234-29 North River Properties LLC and Paul H Longueil TR. & Leslie Longueil Tr. US Route 202 & NH Route 9, and contains 2 match points for the plat created by Mr. Blaisdell for the case currently before the ZBA. The plats were taped together and viewed by members of the board.
Mr. Crowell stated that he had driven up North River Lake Road earlier that day and found that, at the point where the lake comes closest to the road, there was a lot of standing water in the road. He inquired as to who does/would maintain the road. Attorney Boldt informed Mr. Crowell that this area is the Town line. He further stated that he did not know who maintains the road in Northwood but found documentation that Nottingham had declared this road, as well as East North River Lake Road, an emergency lane and maintains them as such. Mr. Crowell felt that the holes he had witnessed were on the Northwood side and questioned whether Northwood would be maintaining that portion. Attorney Boldt stated he did not know that answer to that question and reminded Mr. Crowell that the applicants had supplied the board
with documentation from Northwood stating that they did not have a problem with the proposed Northwood driveways. Mr. Blaisdell stated that it appears that the Northwood route would be the preferred route to reach a major roadway. Mr. Crowell and Attorney Boldt both stated they did not see a town marker at this site. Chair Leib asked if both of the proposed North River Lake Road driveways would follow the same route. Attorney Boldt stated that they would not and reminded the board that proposed Lot 15A-2 contained part of North River Lake Road in its frontage and, technically, did not require a variance. He stated that if the board was viewing North River Lake Road as a public road, the applicant was proposing to leave the public road at the proposed driveway site; however, if the road was view as an emergency lane/private road, the applicant was proposing to leave the public road at the intersection of Cooper Hill Road and North River Lake Road.
Mr. Crowell asked if Nottingham plows to the town line or if they go into Northwood. Mr. Seaverns stated that he felt the Zoning Board should not be using the term “maintain” since the road is only kept in good enough repair for emergency vehicles to pass. In response to Mr. Crowell’s question, Ms. Bonser stated that Nottingham maintenance vehicles would travel to the point of a safe turn-around once they come to the town line. Mr. Russo stated that he travels this road on bicycle and has found that the Northwood side is generally less passable. Attorney Boldt stated that he passed through in a Kia sedan without trouble, adding that he had paused for a moment at the rocky section.
Attorney Boldt stated that the plat before them was the applicants’ preferred driveway location; however, they feel that as an alternative, they could use the proposed driveway for proposed Lot 15A-2 as a shared driveway, bringing it around the left side of proposed Lot 15A-2 to reach proposed Lot 15A-1. Attorney Boldt acknowledged that this proposal includes a driveway which traverses one lot to reach the other, and noted that the board has not been favorable to this in the past. At Chair Leib’s inquiry, Attorney Boldt confirmed that the 1000’ between proposed Lot 15A-1 and North River Lake Road would be granted a right-of-way through the Longueils’ property. Attorney Boldt stated that these are legitimate lots with good soil, noting the only issue with them is the driveway access in the minimum
required frontage. Chair Leib offered the audience a chance to view the maps before talks continued. Mr. Seaverns asked if the past files for Lots 15A and 15 were available. Chair Leib stated that they had been available at the last meeting but had not been brought to this meeting.
In addressing Chair Leib’s concern regarding the “spirit of the ordinance” element of required criteria for approval of an area variance, Attorney Boldt stated that he had referenced the Chester Rod & Gun case and the Malachy Glen case in the material he submitted on October 13, 2007. He expounded, stating that both cases specifically address this issue in that they expressly state that in order to find that a variance is contrary to the spirit of the ordinance you must find that it is “unduly and to a marked degree” contrary to the basic purposes of the ordinance. He further stated that Article VI of the Nottingham Building Code and Zoning Ordinances does not have an express passage of purpose. Reading an excerpt from the Chester case, he stated that, when the
ordinance does not specify a purpose the Board must “look to the language of the zoning ordinance.” Giving a rundown of the Chester case., he informed the board that the Town of Chester had passed a warrant article requiring all cell towers to be on Town owned property at the Town Meeting prior to the submission of the Chester Rod and Gun Club’s application. He added that this was put before the residents as a warrant article, not a change to the zoning ordinances. He informed the board that the Chester ZBA used that warrant article as a statement of what the spirit of their ordinance was intended to say, however, the Court rejected the warrant article saying it was not in the zoning ordinances. He further stated that when there is a zoning ordinance that is silent on a particular passage, the Board must look to the general purposes of the ordinances. He reminded the members of the board that he had addressed three (3) of the
general purposes of the Nottingham ordinances which he felt could ‘arguably’ relate to this variance request; (1) wanting to preserve rural character and natural resources, (2) wanting to ensure that land use is consistent with the capability of the land, and (3) to be sure that the land does not have a deleterious effect on other properties. He stated that Chester and Malachy Glen both say that when dealing with spirit of the ordinance, two topics should be evaluated; (1) whether the proposal is going to alter the essential character of the neighborhood, and (2) whether granting of the variance will pose a threat to public health, safety, and welfare. Addressing these two items, he stated that having these three house lots accessed either from North River Lake Road or through the Longueils’ property would not alter the essential character of the neighborhood or pose a threat to public health because there are already homes accessed
through both of these driveways. He added that there are other house lots with longer driveways than what is being proposed. Mr. Bassett asked for confirmation of where the Longueils’ personal residence was located. Attorney Boldt pointed to the approximate location on the plat.
Attorney Boldt noted that there are times when the Zoning Board may not want the driveway to be placed according to the ordinance because of sight lines, hills, and other things of that nature. He stated that both the Master Plan and the Nottingham Building Code and Zoning Ordinances speak to the community’s interest in the wetlands. He stated that they are asking for the variances to avoid any potential major wetlands crossing, adding that the variance request seems to be a natural fit.
Chair Leib inquired about street numbers for the proposed lots, stating that it would be a problem for emergency vehicles to look for 10 Cooper Hill Road (an example address) a mile down North River Lake Road. Attorney Boldt stated that the example assumes that the lots will be “some number” Cooper Hill Road, adding that the address may likely be “some number” North River Lake Road. He assured the board that the lots will be numbered exactly as requested by the fire department, adding that this is a Planning Board issue. Chair Leib stated that he felt numbering was one of the reasons the zoning ordinance requires the driveway to be within the frontage. Attorney Boldt replied that that is speculation and that there is nothing in record to support it. He further stated that that is a
problem that is fixed by the Planning Board requirement that the number be assigned by the Fire Chief and the Board of Selectmen. Again, Chair Leib stated that he felt the ordinance requiring the curb-cut to be in the frontage was, in part, written to avoid driving a mile up the street to get to a lot. Mr. Russo confirmed with Chair Leib that it was Chair Leib’s interpretation of the ordinance that led to this belief. Attorney Boldt, citing the Supreme Court, again stated that the board needs to look at whether the applicant “unduly and to a marked degree” conflicts with the purposes of the ordinance, adding that in light of the essential character of the neighborhood and the public health, safety, or welfare, the applicant’s proposal is just like any other lot off of North River Lake Road. He further stated that there is no evidence that the purpose of the zoning ordinance requiring the curb-cut to be within the frontage is so that
the 9-1-1 number will be assigned on the frontage road. Chair Leib stated that the Zoning Board has interpreted this ordinance in this manner for many years. Attorney Boldt stated that express language in the Chester Rod and Gun Club case says any variance is technically contrary to the spirit of the ordinance because you are going against the written term on which the population voted into the zoning ordinance, therefore there is a violation of the spirit of the ordinance any time a variance is requested. He stated that the Zoning Board is charged with the constitutional duty of a safety valve to allow usable property to be used in a fair and reasonable manner as long as the five (5) criteria are met. He further stated that the Court expressly says that when a Board deals with spirit of the ordinance, they cannot look at the request as “just not doing what they want it to do,” adding that the request must be “unduly and to a marked
degree” contrary to the stated purposes of the ordinance. He reiterated that there is no stated purpose for this particular clause and stated that he had already addressed the general purposes of the ordinance and the Zoning Board’s concern of emergency vehicles being confused or getting lost. He stated he did not anticipate the Fire Chief or the Board of Selectmen assigning a Cooper Hill Road address to proposed Lot 15A-1 and was willing to make that a condition of approval. He added that he did not believe proposed Lot 15A-2 would be given a Cooper Hill Road address either. Mr. Russo asked who would respond to a house fire when the house was in Nottingham but the address is a Northwood address. Attorney Boldt stated that the towns have a mutual aid agreement and know which properties are on their town line. He added that he felt the issue of servicing the lots should be left up to the professionals and noted that these lots would be
numbered by those professionals. Chair Leib stated he did not want to dwell on house numbers and whether the fire department could get there. He stated he was concerned about a 1000’ right-of-way being the approved access for the lot. Attorney Boldt stated there would be a 1000’ driveway for this proposed lot even if the access was off the frontage on Cooper Hill Road. He stated that length should not be an issue unless they are talking about public roads/cul-de-sacs. Noting that he did not wish to discuss the Chester case since he was unfamiliar with Chester’s ordinances, Mr. Seaverns stated that he had not heard any determination of how the proposed configuration meets the requirements of present Nottingham zoning ordinances which state that the curb-cut will be in the minimum required frontage. He added that he felt that the requested variances did not show any attempt to comply with zoning, nor had there been any
other plans to show what else could be done. He also noted that he had been the one to point out that proposed Lot 15A-2 did not require a variance. Addressing the issue of North River Lake Road, Mr. Seaverns stated that he believes the Town of Nottingham would not like to continue plowing/maintaining this private road. He suggested that North River Lake Road could be extended into a portion of Lot 15A to produce appropriate frontage for these proposed lots and which would meet zoning requirements. He further stated that he does not see any attempt to place the curb-cuts in the frontages of the lots and felt that the proposal does not conform in any way to the spirit of the present ordinances. Chair Leib concurred with Mr. Seaverns assessment. Attorney Boldt stated that he felt Mr. Seaverns assessment was incorrect in that the curb-cuts could not physically be placed in the frontages because of the wetlands adjacent to Cooper Hill Road. He
added that the applicant cannot cross from Cooper Hill Road to the building sites because of the wetlands depicted on the plat as presented to the board. He stated that it is physically impossible and therefore, the applicant meets the area hardship standard. He reiterated that the Board is charged with viewing the plan as presented and that what they would like to see is materially irrelevant. Attorney Boldt stated that building a road to town standards is not a reasonably feasible alternative for building three (3) house lots. He indicated that he felt the Zoning Board’s big concern was the fact that the access is coming through another town but noted that there is nothing in the regulations that prevents this from happening. He stated that it is a basic property right for a person to access a lot they own through an abutting lot that they also own. He informed the board that if the lot for which the subdivision had been applied and the
lot granting access to proposed Lot 15A-1 were one big lot the statutes expressly say that the town line can be considered as a lot line. Referring back to the Chester Rod and Gun Club and Malachy Glen cases, Attorney Boldt stated that the answer to the question around conflict with the spirit of the ordinance is whether the proposal alters the essential character of the neighborhood or threatens public health, safety, or welfare. He stated that there is nothing in the ordinance to support Chair Leib’s speculation of purpose and that, according to Malachy Glen, Chair Leib’s speculation is not evidence.
Attorney Boldt, referencing Nottingham’s zoning ordinances, requested that the Zoning Board of Adjustment grant the two (2) necessary variances for access through the Longueils’ personal driveway in Northwood for proposed Lot 15A and through a right-of-way across Longueil property, also in Northwood, to proposed Lot 15A-1. He also asked for recognition that proposed Lot 15A-2 does not require a variance. Mr. Kelby Longueil, appearing on behalf of his parents, stated that he had spent a lot of time on this property and he felt that this was the most beneficial plan for this lot and it provided for the least amount of environmental impact.
Mr. Seaverns asked if anyone from the Zoning Board had contacted Northwood. Chair Leib stated that he was going to stop at the Northwood Town Hall but it was Thursday afternoon and they were closed. Mr. Seaverns stated that there were questions about a letter from the Northwood Building Inspector. Attorney Boldt stated that that letter was in the file and acknowledged that there was uncorroborated questioning as to whether or not the letter was legitimate.
Chair Leib, referencing RSA 674:41, stated that the applicant was proposing to access the lot via a private right-of-way, not a private road. Attorney Boldt stated that there is no difference between a private road and private driveway, other than the number of houses that may be serviced. Chair Leib stated that he felt the applicant was asking to go from a private road to a private right-of-way and that request did not meet RSA 674:41.
Chair Leib stated that if the Zoning Board was to approve this, the applicant would have to come back before the Zoning Board for the building permit because that is policy that the Board of Selectmen have in place. Attorney Boldt agreed, stating that that was a different hearing. He asked Chair Leib if it would make members more comfortable if the applicant moved the proposed driveway to the alternate position of a shared driveway with proposed Lot 15A-2. Chair Leib stated that he is not comfortable with accessing any property via someone else’s property. Attorney Boldt stated that he felt the issue was accessing the lot through another town. Chair Leib stated that that is another problem. Attorney Boldt stated that if the applicant was to move the proposed driveway for proposed Lot 15A-1 to make a
shared driveway with proposed Lot 15A-2 it would shorten the length of the driveway for proposed Lot 15A-1 and bring the driveway into Nottingham. Chair Leib stated that the driveway for proposed Lot 15A-1 would still need a right-of-way across another lot. Attorney Boldt stated that it seemed the Board was having more of a problem with the proposed driveway for proposed Lot 15A-1 than the proposed shared driveway through the Longueils personal driveway for proposed Lot 15A. Chair Leib stated that he had not gotten far enough to address the other driveway, reiterating that he has a problem with any driveway access that is not in its own frontage. Attorney Boldt asked for clarification. Chair Leib stated that he interprets the zoning ordinance to mean that the driveway curb-cut must be within the minimum required frontage and the precedent that the zoning has set is that a shared driveway must be on the property line. He stated that the Zoning
Board does not approve driveways that go part way in on one lot and then branch off to the other lot. Attorney Boldt asked if it was Chair Leib’s position that, regardless of case law and evidence, there can never be a variance to that zoning ordinance. Chair Leib stated that, in this case, where the proposed driveway travels such a distance over another property, he does not feel it is within the spirit of the zoning ordinance. Attorney Boldt stated that he does not know what other cases have presented to the Board, however, there is now clear direction from the Supreme Court as to how the Zoning Board is to overcome their concern. Chair Leib stated that he agrees with most of Attorney Boldts responses to the five criteria for an area variance, however, does not agree that it is not contrary to the spirit of the ordinance. Mr. Bassett stated he was not convinced that surrounding properties would not be affected by this proposal. Attorney
Boldt asked if there were any more questions he could answer before the Board voted. He informed the board that he would work with his client to file an appeal and then bring the case forth to seek an answer from the Court. Mr. Longueil asked if this issue could be alleviated by a cistern or a pipe in the pond. Chair Leib stated that his issue is access to the lot.
Mr. Seaverns stated that he believes part of the problem is that the Nottingham Zoning Board has no control over the Northwood portion, and has no right to say anything about the access coming through there. He further stated that if there is a problem with the easement, they have no way to be sure that Northwood will straighten it out. He stated that the Longueils do own all that property and have a right to use it, but the Nottingham Zoning Board has no authority over the land in Northwood, adding that anything the applicant wants to do in Nottingham is within the Nottingham Zoning Board’s authority, however, that authority ends at the town line. Attorney Boldt stated that Mr. Seaverns is correct that the Nottingham Zoning Board’s authority ends at the town line. He added that, to address the concern
voiced by Mr. Seaverns, the applicant has provided documentation from Northwood and that the Board can require, as a condition of the approval, that an easement be deeded either from Cooper Hill Road across the Longueil property or from North River Lake Road across the Longueil property. He stated that this would happen automatically. Attorney Boldt stated that the only question is whether the board has been provided with the evidence and arguments to meet the case law on how to address the spirit of the ordinance. He stated that the Malachy Glen case specifically states that you can not use the fact that the request does not meet the language of the ordinance as the reason for denying the variance.
Mr. Longueil asked if members of the board had had an opportunity to walk the property. Chair Leib replied that he did not. Mr. Longueil encouraged them to take a site-walk. He stated that he believed they would feel differently if they were to see the layout of the property.
Mr. Bassett stated that he has a concern about the 50’ wide access to the private road, noting that he does not have enough data to know if this will eventually contain more houses. He stated he felt that there are other alternatives to access the property. Attorney Boldt stated that the proposed access to proposed Lot 15A-2 is an existing woods road and that if it was necessary to move the proposed driveway for proposed Lot 15A-1 to make a shared driveway with proposed Lot 15A-2 to obtain ZBA approval tonight, the applicant was willing to do this. Mr. Longueil informed the members that if they were to walk the property that they would find that the proposed access is a lower impact than the one currently being discussed. Mr. Bassett stated he would like to walk the property. Other members concurred and
planned to walk it individually. Mr. Longueil provided members of the board with a phone number at which they could reach him to open the chain to the back lot.
Chair Leib asked if the applicant was coming back with an alternate plan for driveway access. Attorney Boldt stated that the alternate entry was already on the plat as a proposed driveway for proposed Lot 15A-2. Chair Leib stated that that option would not get his vote. Attorney Boldt stated that it did not have his vote anyway. Chair Leib stated that he did not feel it met the spirit and intent of the ordinance unless the lots were reconfigured to accommodate the access on the property line. Attorney Boldt stated that the lots could not be configured in that manner due to the wetlands. Chair Leib stated that some lots are not meant to be developed. Attorney Boldt stated that that is why there are variances.
Mr. Longueil supplied members of the board with his phone number so they may access the lot.
Attorney Boldt asked Ms. Chauvey if she could request a continuance from the Planning Board at their meeting the following night. Ms. Chauvey asked Attorney Boldt to e-mail a request for continuance to December 19th, which she could forward to the Board.
Mr. Crowell made a motion to recess the hearing of Paul and Leslie Longueil until Tuesday, December 11, 2007 at 7:00 PM. Mr. Russo seconded the motion. All in favor. Motion passed 5-0.
CASE 07-09 Application from Grace LaPointe for an Area Variance to Article VI Section A1 to allow a driveway access to a proposed lot on Barderry Lane from an abutting lot with frontage on Raymond Road rather than from the frontage on Barderry Lane, a private road. The lot in question is located on Raymond Road/Barderry Lane, is identified as Tax Map 63 Lot 80-1, and is owned by Grace LaPointe.
Chair Leib opened the hearing at 8:30 PM.
Mr. Dingman presented new plats to the Zoning Board depicting the proposed driveway for proposed Lot 80-1-1 running along the lot line of Lot 80-1. He stated they would share the common entrance, however, would split at the earliest point possible. He stated they would provide legal deeded easement to the lot providing an oversized driveway of 16’ wide with a 36’ hammerhead for emergency vehicle turnaround.
Chair Leib confirmed with Mr. Dingman that the Fernald’s would not grant an easement on Barderry Lane and inquired as to whether the lot actually had frontage on Barderry. Mr. Dingman reported that it did have frontage on Barderry Lane and Barderry has been deemed a buildable road by the Planning Board. Chair Leib noted that the flag markers on the lot are 10 – 15 feet from the road. Mr. Dingman stated that the road’s right-of-way extends to the point marked by the flags even though the road is not that wide. Chair Leib stated that he thought the road needed to come to the edge of the property. Mr. Dingman informed Chair Leib that all lots, including those on town and state roads, cross a right-of-way to access the lot. Mr. Dingman clarified the right-of-way for Mr. Bassett stating that
Barderry Lane itself crosses a State right-of-way at its entrance. Chair Leib stated he still did not understand the right-of-way for the two-rod road issue. Mr. Seaverns stated that people always make the assumption that they own to the pavement, however, that is not true. He added that the right-of-way goes beyond the edges of the road. Mr. Russo stated that the State is obligated to allow access on a State road, however, this road is privately owned and the owners are not obligated to allow access. Chair Leib felt that if the Fernalds had the right to deny access to Barderry Lane, he did not see how frontage could be claimed on the road. Mr. Dingman stated that all driveways cross a right-of-way.
Chair Leib confirmed with Mr. Dingman that Attorney Teague and Ms. LaPointe’s attorney had agreed that Barderry Lane is an approved road for building because of previously approved subdivision. Chair Leib asked Ms. Bonser if she had sat on the Planning Board for the hearings pertaining to this case. Ms. Bonser stated that she had, however, she felt that Chair Leib should review the letters from Attorney Teague for himself. Mr. Seaverns stated that the RSA assumes that if there is approved subdivision on a private road then there is the means and ability to obtain a curb-cut. Mr. Dingman stated that if the RSA read that once the road became an approved road by the Planning Board, the owners were obligated to allow future access, Ms. LaPointe would not need to come before the Zoning Board. Chair Leib
confirmed with Mr. Dingman that if the previous plats approved by the Planning Board did not depict the right-of-way for Barderry Lane as going from the stone wall on one side to the stone wall on the other, then the lots would not have frontage on an approved road. Mr. Bassett asked if there was any difference in terminology used for the roads discussed in both cases heard tonight. Ms. Chauvey referred back to the Longueil plat and stated that both cases had referred to the roads as “public/private” roads.
Mr. Seaverns stated that the reason he attended the meetings for these hearings is because of the possibility for precedent setting. He stated that he thinks both cases are very unique but extremely similar in how they could be approached. Mr. Dingman stated that his client is seeking a driveway access off of a Class V or better road where the previous applicant was seeking access strictly from a private road. Mr. Seaverns stated that the LaPointe case is interesting in that the RSAs have allowed for this to be an approved road but did not go on to state that once the owners allow subdivision, they forfeit their right to deny access to future subdivisions. Mr. Seaverns indicated that he felt both applicants are attempting to use whatever means they need to access the lots so they can receive approval for their
subdivisions. He further commented that if Ms. LaPointe’s got approved, he felt that Mr. Longueil’s would also need to be approved. Mr. Dingman stated he felt there are many differences including the fact that Ms. LaPointe is not suggesting access through another town. Mr. Russo stated that he felt that this lot differs in that it does have frontage on an approved road and the drawback comes in that the State did not address the issue of access. He referred to the Longueil case, noting that the property has physical limitation such as wetlands, town boundaries, easements, and so forth. He viewed this case as being much more straight forward.
Mr. White noted for the record that there has been no abutter concerns with this proposed subdivision, adding that even though the Fernald’s had written a letter denying access from Barderry, they have not appeared at the meetings to protest the subdivision.
Chair Leib mulled over the issues that would arise if Ms. LaPointe approached this as a back-lot subdivision. Mr. Dingman pointed out that that would include a minimum of four lot line adjustments, and then the applicant would have to approach the ZBA for three (3) variances (for lot size, frontage, and age of lot) instead of the one they have chosen to go with. Mr. Seaverns stated that he believes that both of these cases are precedent setting. Ms. Bonser stated that she believed case law states that Zoning Board decisions are not precedent setting. Mr. White stated that he does not believe Zoning Board cases are precedent setting because each case must be looked at in regards to its own merits.
Mr. Bassett stated that he thought it might be a more ideal situation if the driveway entrance was moved to the property line. He thought it would also be a more ideal situation if the property line for each lot went down the middle of the driveway. Mr. Dingman again stated that they could not bring the property line for the proposed lot out to Route 156/Raymond Road without affecting the conformity of Ms. LaPointe’s lot. Mr. Seaverns pointed out that the RSAs have made Barderry Lane an approved road, therefore, Ms. LaPointes lot does not require 200’ of frontage on Route 156/Raymond Road because it has enough frontage on the Barderry Lane side. He further stated that it would take some reconfiguring of Ms. LaPointe’s subdivision to maintain the two acres for the front lot.
Mr. Bassett asked the applicants if they were willing to accept a condition placed on the approval stating that the driveway would only be used to service Ms. LaPointe’s lot and the lot she was proposing in her subdivision application. The applicants agreed.
Chair Lieb stated that the applicant needs to show that the same benefit cannot be achieved by some other reasonably feasible method in order to obtain a variance and he felt Mr. Seaverns had just pointed out how it could be done without requiring a variance. Mr. Dingman stated that the applicant would still need to come before the Zoning Board because the State has determined where that driveway will be and it is not in the first 20’ of the property. Chair Smith stated that he driveway does not need to be in the first 20’, adding that it would mean that Ms. LaPointe’s lot would need to be reconfigured. Mr. Dingman showed Chair Leib that the lots could not be reconfigured to create two appropriate lots if the driveway was left where it is, noting that the property that is removed from the Route 156/Raymond
Road side of Ms. LaPointe’s lot will need to be added on to the Barderry side, which takes away from the lot she is proposing in her subdivision and also creates a situation whereby neither lot would have a curb-cut in its frontage.
1. The proposed use would not diminish surrounding properties values because:
Mr. Dingman responded that the lot meets all legal regulations with the exception of the approved driveway access. He further stated that the lot is larger than 37 out of 47 lots already on that street and he believed that this would improve values and not diminish them.
Ms. Chauvey asked members of the Board to make a determination for each criteria individually for the record. She stated that she has become aware that each criteria has to pass on its own in order for the Board to approve the variance. Chair Leib stated he thought that a vote at the end would determine who believed all five (5) criteria had been met. Ms. Chauvey stated that it was the Board’s decision as to how to handle it, she just wanted them to be aware that research had indicated to her that each criteria is supposed to pass on its own in order for the variance to be granted. Chair Leib stated that they would poll the board for each item in this case.
All members agreed that the proposed subdivision requiring the variance would not diminish surrounding property values.
2. Granting the variance will not be contrary to the public interest because.
Mr. Dingman stated that the public interest is being met in that the spirit and intent of the ordinance is being met with the exception of the curb-cut being in the required minimum frontage. He further stated that the subdivision (and proposed lot) are approvable under the RSAs and Nottingham ordinances, but that there is a legislative loophole in which the RSA does not address access on these approved roads. He reiterated that Ms. LaPointe is only here because she has been denied access in the frontage from the road owners, who are not contesting the subdivision.
All members agreed that the granting of the variance was not contrary to public interest.
3. The denial of the variance would result in unnecessary hardship because:
a. The following special conditions to the property make an area variance necessary in order to allow the development as designed:
Mr. Dingman stated that the special condition to the property is the loophole in the RSA which does not permit a curb-cut within the legal frontage. He stated that the RSA should have addressed access from the approved roads.
b. The benefits sought cannot be achieved by some other method reasonably feasible to pursue.
Mr. Dingman stated that if they start moving lot lines around, they would end up needing two (2) variances instead of one.
All members agreed that these special conditions existed and that reconfiguration was not reasonable.
4. Substantial justice is done.
Mr. Dingman stated again that this request is caused by a loophole in the RSAs. He stated that the lot meets all criteria with the exception of having the curb-cut on Barderry Lane and that the only reason the curb-cut is not being placed there is because they were denied access from the road owners.The variance is consistent with the spirit of the ordinance.
All members agreed that substantial justice would be done.
5. The variance is not contrary to the spirit of the ordinance because:
Mr. Dingman stated that they are proposing a proper residential lot which meets the spirit of the ordinance, but that they must request access from the side because of the uniqueness of the situation. Mr. Crowell stated that he believes that since the RSAs provide for this to be a legally buildable lot, it is his opinion that the lot could legally be accessed from Barderry. Mr. Dingman stated that the applicants do not wish to force the issue with the Fernalds. Mr. Crowell stated he understood, he was just giving his opinion. Mr. Morin stated that the board has stood firm on not allowing access to lots across a neighboring lot. Mr. Bassett asked if the determination that Barderry is an approved road is a final determination. Ms. Bonser stated that that is the legal opinion from the town’s attorney. She further stated that it is only an opinion and the Board does not need to accept it. Mr. Russo stated that he understands Mr. Morin’s apprehension at having a driveway cross
one lot to get to another, acknowledging that it could be a problem down the road. Mr. Dingman stated that the Fernalds may grant access sometime down the road, or if there is another owner, they could possibly push the issue. Mr. Russo stated that that is what is different in this case is that physically and legally they could have access to this lot.
Mr. Crowell, Mr. Russo, and Mr. Bassett agreed that the subdivision was in keeping with the spirit of the ordinance. Chair Leib and Mr. Morin did not agree.
Mr. Bassett made a motion to approve the application of Grace LaPointe for an Area Variance to Article VI Section A1 to allow a driveway access to a proposed lot on Barderry Lane from an abutting lot with frontage on Raymond Road rather than from the frontage on Barderry Lane, a private road, as depicted on a plan submitted by V.W. Dingman & Sons with the latest revision date of 11/27/07 because the applicant has been denied a curb-cut for the proposed lot from the approved private road owners. The lot in question is located on Raymond Road/Barderry Lane, is identified as Tax Map 63 Lot 80-1, and is owned by Grace LaPointe. Mr. Bassett further motioned that this approval is given on the condition that the shared driveway is for the benefit and use of Lot 80-1 and proposed Lot 80-1-1 only. Mr. Russo seconded the
motion. Mr. Crowell, Mr. Russo and Mr. Bassett voted in favor of the motion. Chair Leib voted against the motion. Mr. Morin abstained from the vote. Motion passed 3-1-1.
OTHER BUSINESS:
Mr. Russo stated that he needed clarification as to whether or not the board is required to give reasons for their decisions. Chair Leib stated that it is better for the Board if they write down their reasons on the Finding of Facts sheets, especially for cases that may go to Court. Ms. Chauvey stated that she is required by RSA to provide a reason in every Notice of Decision that she prepares. Mr. Crowell asked if Finding of Fact forms should be used in the Longueil case. Chair Leib stated that members can fill them out whenever they want. Mr. Russo asked Ms. Chauvey to bring forms with her to the next meeting.
Mr. Russo made a motion to adjourn the meeting. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at 9:50 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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